U.S. Supreme Court denies appeals of Second Circuit Court of Appeals (NY) decision that upheld EPA’s Water Transfers Rule

February 26, 2018

In January 2017, a panel of the 2nd Circuit Court of Appeals reversed the Southern District of New York and reinstated EPA’s Water Transfers Rule, which the District Court had vacated and remanded. EPA’s Water Transfers Rule, 40 C.F.R. § 122.3(i), excludes water transfers from the National Pollutant Discharge Elimination System (NPDES) program of the federal Clean Water Act, which historically applies to municipal wastewater and industrial discharges. 33 USC § 1342. Although water transfers do not cause serious water quality problems, compliance with NPDES requirements would be prohibitively costly and technically infeasible, depriving virtually every western city and irrigated agriculture of essential water supplies. For example, Cheyenne, Wyoming, Fort Collins, Boulder, Denver, Colorado Springs, and Pueblo, Colorado, Santa Fe, Albuquerque, Salt Lake City, Phoenix, Tucson, Las Vegas, and cites along the Southern California coast from Oxnard to San Diego rely on water transfers to supply their residents. Water transfers also supply much-needed supplemental irrigation water to farmers and ranchers in Colorado, New Mexico, Arizona, and the Central, Palo Verde and Imperial Valleys of California, as wells as Idaho, Washington and Oregon.

New York State et al. and a group of New England environmental and sportsmen’s organizations filed separate petitions for certiorari last fall, seeking U.S. Supreme Court review of the lower court’s decision upholding EPA’s Rule. The Supreme Court, however, denied both petitions, leaving the protections of EPA’s Water Transfers Rule in effect.

Peter Nichols has led the West’s defense of water transfers throughout 16 years of litigation, in U.S. district courts and courts of appeal across the nation, and the U.S. Supreme Court. Peter successfully argued the cause for the West before the Second Circuit Court of Appeals, winning the 2-1 decision that the Supreme Court let stand today. Throughout the litigation, Peter has served as lead counsel for western municipalities, irrigators, water conservation, conservancy and irrigation districts and water user associations. He has also served as a special assistant attorney general for Colorado and New Mexico, and co-counsel for the Western States in the litigation.